Let The Law School Class Action Lawsuits Proceed: 5 Defenses That Don't Work
If any of the remaining law school lawsuits end up in appeal, the motions to dismiss should be denied and the cases be allowed to proceed.
Regular readers of this column know that I went to a low-ranked school and left with mediocre grades. So when I finished law school, I knew and accepted the fact that finding jobs and developing my career was going to be a difficult but hopefully fulfilling ordeal. Thankfully, I was able to find something, but I constantly felt that my legal career would be unstable at best. Some time later, I learned that people from better schools with better grades were having the same problems I was. Later, more people were “coming out” about their job search struggles.
A few years ago, a number of law schools got sued by their graduates. The plaintiffs claim that they matriculated and took on six figures of nondischargeable student loans relying on the schools’ fraudulent and misleading post-graduate employment statistics.
Most of these lawsuits have been dismissed and their dismissals have been upheld on appeal. Thus, the graduates will not get their day in court. Also, there will be no discovery, no salacious emails, and no depositions of deans and admissions staff. In a way, it is good to know that it didn’t take much litigation for courts to hold that law schools’ employment statistics are unreliable, incomprehensible, and possibly fraudulent.
What Do Millennials Think Of Law Firm Life?
But dismissing these lawsuits at the pleadings stage is premature. And I disagree with the basis of the dismissals that I will discuss below. Ultimately, these cases should be brought before juries, and schools should be held accountable for their actions.
1. Law school applicants are sophisticated consumers with a college education. The courts are holding law school applicants to a higher standard than an ordinary consumer. I initially thought that this statement was trying to compliment law students’ intelligence. But if that was the intent, it fails because it comes off as patronizing.
There is no evidence that college graduates have a higher level of “street smarts” that would immunize them from pushy, inaccurate sales pitches. College graduates and even masters, doctoral, and professional degree holders fall for Ponzi schemes, sham tax shelters, and other scams. In the case of these lawsuits, the schools contend that the plaintiffs, as college graduates, should be able to independently analyze data from various sources. That brings me to my next point.
2. Prospective applicants should have done their due diligence before matriculating. Today, there is enough outside information on the internet to allow applicants to make an informed decision on which law school to attend or whether to attend law school at all. But many of the named plaintiffs and the class members graduated between 2006 and 2010. This means that they matriculated between 2003 and 2007. What kind of due diligence and critical research could they have done in those days?
Sponsored
The Global Legal News You Need, When You Need It
What Do Millennials Think Of Law Firm Life?
Legal Knowledge Management To Drive Dealmaking
Not much information was available on the internet and the mainstream news. Above The Law was in its infancy, and there were few if any “scamblogs.” The earliest mainstream media article that mentioned law schools’ deceptive employment stats was a Wall Street Journal article in 2007 by Amir Efrati. The game-changing New York Times article, Is Law School A Losing Game? by David Segal, was published in early 2011.
What about talking to practicing attorneys? Most prospective law school applicants will seek advice only from successful attorneys, not the guy practicing from the local FedEx Office. Talking to alumni of low-ranked schools is not likely to produce much critical information either. Some alumni are no longer practicing law or never got the chance. Others are reluctant to admit they are struggling, especially solo practitioners who have to exude confidence and success in order to attract clients.
The point is that any due diligence and research on post-graduate employment prospects at the time would have been limited and tainted at best. It would have been almost impossible for an impressionable (or desperate and unemployed) young college graduate to know the truth about law school employment statistics.
3. It is unreasonable to rely on law schools’ self-reported, unaudited, puffed-up employment statistics.
So the courts’ logic seems to be that if law schools’ misleading information is egregious, ridiculous, and outrageous enough, then schools are absolved of any legal liability whatsoever because it is the applicant’s fault for believing such nonsense.
Sponsored
Stuck Drafting A Tough Brief? This Tool Can Help.
Again, because of the lack of critical information at the time the plaintiffs applied to law school, they had little choice but to take the law schools’ information at their word. Most law schools are 501(c)(3) non-profits, so even a “sophisticated consumer of education” would think that schools would have no financial incentive to mislead applicants. Also, most applicants didn’t know that U.S. News did not independently verify the employment numbers reported by the law schools for rankings purposes. Based on this, the plaintiffs’ reliance should be reasonable.
But assuming the courts’ logic prevails, I should consider starting a bankruptcy practice. On my ads, I’ll state that I have a 100% success rate on discharging student loan debts. Of course, I won’t mention that I took only two student loan bankruptcy cases: one where the petitioner was a quadriplegic and the other being dead. Or I should start a personal injury practice where I promise to demand $1 trillion dollars in damages in every case that goes to court.
4. Law schools only promised a law degree and a chance to take the bar exam.
In other words, law schools did not literally promise employment upon graduation. But most law schools’ marketing and recruiting efforts gave a strong suggestion that most of their students would get jobs as lawyers after graduation, which was for most applicants the sole basis for attending.
This is the main reason why I think these lawsuits should have made it to the discovery stage. We could have seen what kind of marketing materials were used to recruit students and whether they contained any misleading employment information.
5. Aspiring lawyers need to accept personal responsibility.
While the courts did not literally mention this, I think that one message that they tried to send was that aspiring lawyers should accept personal responsibility for their actions. Striving to pay back soul-crushingly large student loans for the rest of their lives teaches good virtues like resilience, sacrifice, and financial prudence. While this may be noble, I wouldn’t expect law schools to put this message on future advertising brochures because applicants will choose to attend clown college instead.
But sometimes, I see people use personal responsibility as a way to deflect blame away from themselves and unto others, usually to the less powerful. Let’s admit it, blaming the “entitled” young is easier than admitting that the system is broken and needs serious structural change. The young don’t talk back (at least for now) because they are clueless, naive, and have careers to think about.
Also, preaching about personal responsibility is great clickbait for the self-righteous crowd.
Some suggest that continuing the lawsuits is no longer necessary because the recent decline in law school applications shows that today’s law school applicants are better informed about the realities of the job market. That’s all well and good, but the casualty is that the students better credentials are going elsewhere, and many law schools are lowering admissions standards as a result.
So if any of the remaining law school lawsuits end up in appeal, the motions to dismiss should be denied and the cases be allowed to proceed. Don’t worry, a verdict against the law schools will not open any floodgates because there won’t be lawsuits like this in the near future. For members of the classes of 2004 – 2012, it is likely that most statutes of limitations for filing class action suits have passed. And for the class of 2013 until now, they will have a harder time proving that they reasonably relied on the law schools’ employment numbers because more objective information is now available.
Shannon Achimalbe was a former solo practitioner for five years before deciding to sell out and get back on the corporate ladder. Shannon can be reached by email at sachimalbe@excite.com and via Twitter: @ShanonAchimalbe.
